A Surrey homeowner who cut down and destroyed dozens of cedar hedges on a neighbour’s property has been ordered by a B.C. court to pay her neighbours almost $150,000 in damages plus thousands more in court costs.
The neighbouring property owner sued Sukhwinder Kaur Khatkar for repeatedly trespassing — over six months and even after a visit from police — and was awarded rare punitive damages of $35,000, the maximum of the $30,000 to $35,000 they sought, by the B.C. Supreme Court.
In an oral ruling, Justice Amy D. Francis said the plaintiff based the request for punitive damages on the trespass being a “deliberate and wilful action done without regard for her neighbour’s property rights,” despite warnings from the tenants and the police to stay off the property.
The court was shown photos and video of Khatkar climbing the fence between the two properties while wielding a chainsaw between July and December 2021 when she trespassed.
“I agree with the plaintiff that the defendant’s conduct was reckless, high-handed and is without question deserving of punitive damages,” wrote Francis. Such “reckless disregard” for property rights need denunciation and deterrence, she wrote, using terms more commonly used by judges during a criminal trial.
The plaintiff, identified as 0973210 B.C. Ltd., was also granted the more usual compensation for the losses, including $60,000 to replant 74 of 75 hedges and $50,000 for loss of privacy and use and enjoyment of the trees. They were also compensated more than $3,500 for an arborist’s services.
The damages totalled about $148,500, and the judge also ruled Khatkar was responsible for the other party’s court costs and issued an injunction banning her from ever again entering the neighbour’s property.
The trial was remarkable because Francis granted the plaintiff’s application to have the lawsuit heard in a summary trial instead of a full trial because it was a “very straightforward case of trespass,” and it went ahead without the presence of Khatkar or her lawyer, after Khatkar failed to show up.
Francis said Khatkar was aware of the hearing date and so decided to proceed in the absence of the defendant.
Over the six months in 2021, Khatkar trespassed on the plaintiff’s property and cut off up to 3.3 metres of 75 4.5-metre-tall mature cedar trees on the property line between the two properties, ultimately causing the cedar hedge to be destroyed, Francis wrote.
The hedge, which was clearly on plaintiff’s side of a chain-link fence, which also belonged to the plaintiff, provided a “complete privacy screen,” which the two people who lived there valued, she wrote.
On Sept. 29, 2021, an RCMP constable spoke to Khatkar and told her to stop trespassing and cutting the hedge. Thirty minutes after his visit, she returned to the plaintiff’s property to again cut the trees.
An arborist said the only fix was to replant the entire hedge and replace the damaged fence, for $59,915.73, and that the cedars would take eight to 10 years to grow to their previous height, court heard.
Francis granted an additional $50,000 for general damages for loss of the trees while they grow to their original height as well as loss of privacy and enjoyment of the trees. The arborist’s bill of $3,575.25 was granted as special damages.
A landmark Canadian case for assessing damages is Whiten v. Pilot Insurance Co. 2002, where the judge noted that the purpose of contract law, such as personal injury cases, is to “make good the loss suffered, no less, no more,” and to allow a victim to receive “fair compensation” so they can function the way they did before.
Punitive damages are therefore rare and the judge in the Whiten case ruled they are awarded only in exceptional cases to achieve “retribution, deterrence and denunciation,” to both “punish the egregious action and also prevent similar future behaviour by the wrongdoer and other members of society.”
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